R (on the Application of Waseem & Others) v Secretary of State for the Home Department (Long Residence Policy — Interpretation)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Keith |
| Judgment Date | 03 June 2021 |
| Neutral Citation | [2021] UKUT 146 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 146 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Keith UTJ
Mr Z Jafferji and Mr A Rehman instructed by Lawise Solicitors, for the first Applicant;
Ms S Naik QC and Ms E Gunn instructed by Jein Solicitors, for the second Applicant;
Mr R Harland instructed by the Government Legal Department, for the Secretary of State.
Balajigari v Secretary of State for the Home Department; Kawos and Others v Secretary of State for the Home Department; Majumder and Another v Secretary of State for the Home Department; Albert v Secretary of State for the Home Department[2019] EWCA Civ 673; [2019] 1 WLR 4647; [2019] 4 All ER 998; [2019] Imm AR 1152; [2019] INLR 619
Bank Mellat v Her Majesty's Treasury [2013] UKSC 38; [2014] AC 700; [2013] 4 All ER 495
Charles (human rights appeal; scope) [2018] UKUT 89 (IAC); [2018] Imm AR 911
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1998] UKPC 30; [1999] AC 69; [1998] 3 WLR 675
EB (Kosoyo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159; [2008] 3 WLR 178; [2008] 4 All ER 28; [2008] Imm AR 713; [2008] INLR 516
Hoque and Others v Secretary of State for the Home Department [2020] EWCA Civ 1357; [2020] 4 WLR 154; [2021] Imm AR 188; [2021] INLR 1
Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546; [2016] 4 All ER 189; [2016] Imm AR 180; [2016] INLR 184
Muneeb Asif (Paragraph 276B disregard – previous overstaying) [2021] UKUT 96 (IAC)
OA and Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 65 (IAC); [2019] Imm AR 647; [2019] INLR 312
Patel and Others v Secretary of State for the Home Department; Anwar v Secretary of State for the Home Department; Alam v Secretary of State for the Home Department[2013] UKSC 72; [2013] 3 WLR 1517; [2014] 1 All ER 1157; [2014] Imm AR 456; [2014] INLR 205
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591; [2015] 3 All ER 1015; [2015] Imm AR 950; [2015] INLR 593
Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568; [2014] Imm AR 711; [2014] INLR 291
Qongwane and Others v Secretary of State for the Home Department; R (on the application of Singhy v Upper Tribunal (Immigration and Asylum Chamber)[2014] EWCA Civ 957; [2014] Imm AR 1179; [2015] INLR 213
R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26; [2001] 2 AC 532; [2001] 2 WLR 1622; [2001] 3 All HR 433
R v Secretary of State for the Home Department ex parte Mehta [1975] 1 WLR 1087; [1975] 2 All ER 1084
R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
R (on the application of Ahmed) v Secretary of State for the Home Department (paragraph 276B — ten years lawful residence) [2019] UKUT 10 (TAC)
R (on the application of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055; [2016] 2 All ER 195; [2016] Imm AR 270; [2016] INLR 314
R (on the application of Das) v Secretary of State for the Home Department [2014] EWCA Civ 45; [2014] 1 WLR 3538
R (on the application of Junied) v Secretary of State for the Home Department [2019] EWCA Civ 2293; [2020] 4 WLR 18
R (on the application of Kalsi & Ors) v Secretary of State for the Home Department [2021] EWCA Civ 184; [2021] Imm AR 859
R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department[2017] UKSC 42; [2017] 1 WLR 2380; [2017] 4 All ER 811; [2017] Imm AR 1299; [2017] INLR 909
R (on the application of Lord Carlisle of Berriew QC and Others) v Secretary of State for the Home Department [2014] UKSC 60; [2015] AC 945; [2014] 3 WLR 1404; [2015] 2 All ER 453
R (on the application of Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin)
R (on the application of Quila and Another) v Secretary of State for the Home Department; R (on the application of Bibi and Another) v Secretary of State for the Home Department[2011] UKSC 45; [2012] 1 AC 621; [2011] 3 WLR 836; [2012] 1 All ER 1011; [2012] Imm AR 135; [2011] INLR 698
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536; [2019] 1 All ER 1007; [2019] Imm AR 452; [2019] INLR 233
Secretary of State for the Home Department v R (on the application of XY) [2018] EWCA Civ 2604; [2019] 1 WLR 1297; [2019] Imm AR 524
Unuane v United Kingdom 2020 ECHR 80343/2017; [2021] Imm AR 534; [2021] INLR 152
WM (Democratic Republic of Congo) v Secretary of State for the Home Department; Secretary of State for the Home Department v AR (Afghanistan)[2006] EWCA Civ 1495; [2007] Imm AR 337; [2007] INLR 126
European Convention on Human Rights, Article 8
Immigration Act 1971, sections 3 & 3C
Immigration Rules HC 395 (as amended), paragraphs 39E, 276A, 276B, 276ADE & 353; paragraph GEN.3.2. of Appendix FM
Nationality, Immigration and Asylum Act 2002, sections 117A-B
Human rights — Article 8 of the ECHR — family and private life — proportionality immigration — Home Office policies and concessions — long residence — ten years' continuous lawful residence — interpretation ‘open-ended’ overstayers procedure and process fresh application — paragraph 353 of the Immigration Rules
The first Applicant. AW, a citizen of Pakistan, entered the United Kingdom as a student in April 2009. His leave was extended on several occasions culminating in leave to remain as a tier 1 entrepreneur until 24 June 2017. That was the last date-on which he had leave, other than as extended by section 3C of the Immigration Act 1971 (“the 1971 Act”). On 22 June 2017, AW applied for indefinite leave to remain (“ILR”) on the basis of ten years' continuous lawful residence, despite having been in the United Kingdom for a little over eight years only. The Secretary of State for the Home Department refused the application. AW's appeal to the First-tier Tribunal (“FtT”) was dismissed and his appeal rights were exhausted on 31 January 2019. On 4 February 2019. AW applied again for ILR on the ground that by 21 March 2019, taking into account the ability to apply 28 days before a required residence period was met, he had lived in the United Kingdom for ten years. On 20 April 2019, the Secretary of State refused the application as AW had been an overstayer, without any existing leave, since 31 January 2019, and so a longer period of residence would be required for some form of leave based on long residence, namely 20 years. She also refused to treat the application as a fresh claim. AW applied for judicial review of that decision on 14 June 2019.
The second Applicant. GA, and her husband. UM, were citizens of Sri Lanka. They entered the United Kingdom pursuant to GA's student visa on 20 September 2003 and thereafter obtained extensions of leave to remain. In October 2007. GA applied for a further extension. That application was refused. GA's appeal against that decision was dismissed and her appeal rights were exhausted on 6 March 2008. The couple remained as overstayers until they left the United Kingdom in April 2008. GA then applied for a further student visa on 29 May 2008, which was granted. GA and UM re-entered the United Kingdom on 6 July 2008 and 10 August 2008 respectively. They had remained in the United Kingdom ever since. GA's leave to remain as a student was extended until 30 October 2015. That was the last time on which GA had leave to remain, other than by reason of section 3C. GA made an in-time application for ILR based on ten years' continuous lawful residence, referring to her residence from 20 September 200.3 until 21 September 2013. That application was refused. The FtT dismissed the appeal against that decision and GA's appeal rights were exhausted on 9 May 2018. On 17 May 2018. GA and UM applied for further leave to remain based on their rights to respect for their private life, by reference to Article 8 of the ECHR. Before their applications were decided, they varied their applications, seeking ILR based on ten years' continuous lawful residence, since GA's re-entry to the UK on 3 July 2008. The Secretary of State considered that GA's and UM's leave had ended on 9 May 2018 and therefore refused the applications. GA and UM applied for judicial review on 22 February 2019.
At the core of the Secretary of State's decisions was the common circumstance that the Applicants were all ‘open-ended’ overstayers, as described by the Court of Appeal in the case of Hoque and Others v Secretary of State for the Home Department[2020] EWCA Civ 1357. The Applicants accepted that their ILR applications fell for refusal under the Immigration Rules HC 395 (as amended), as now understood as a result of Hoque, but they contended that the Secretary of State impermissibly failed to apply her own, wider policy in relation to long residence, which would otherwise result in them being granted some form of leave and so becoming ‘book-ended’ overstayers (ground 1); unlawfully refused to treat their further submissions as fresh claims, for the purposes of paragraph 353 of the Immigration Rules (ground 2); and failed adequately to carry out a proportionality assessment for Article 8 ECHR purposes (ground 3). In amended grounds, the Applicants' submitted a new ground 4 which argued that the Secretary of State's policy lacked “accessibility and foreseeability” when read in the context of her wider immigration policy. The ground referred first to the Court of Appeal's criticism of the...
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